There has been a significant growth in the official and there has been an increase in the

informal involvement of non-state entities in law of nations in recent years, despite the fact
that laws of nation are a collection of laws that is primarily and basically involved with the
engagement of nations with the other nations. Academics in the field of international law are
polarized on whether or not this participation is equivalent to or a consequence of non-state
actor awareness of international law. Notwithstanding philosophical disagreements on the
role of non - state actor in laws of nations, the colloquial existence of non-state organisations
in international law and international interactions is a reality that cannot be ignored.1

This essay will discuss the function of non-governmental organisations (NGOs) in the
framework of international commercial and investment law's dispute resolution processes. An
increasing number of institutions have emerged in recent decades with the mandate to
mediate conflicts governed by international law. As disputes resolution methods grow in
prevalence, one aspect that is frequently missed is the growing role of non-state enterprises as
quasi stakeholders in processes. The growth of judicial dispute resolution procedures has
been particularly helpful to non-governmental organisations (NGOs), who may now
participate in such forums, frequently termed “friends of the court”. An amicus curiae is a
non-party to the dispute who has been given the opportunity to submit written argument to
the court or tribunal &, in exceptional circumstances, to appear in person before the
adjudicating authority and provide oral argument.2

This trend has been noted in several tribunals, including the ICJ, but it has been most obvious
in international commercial disputes and international investment arbitration.

The WTO dispute resolution organs & international investment tribunal have been confronted
with uninvited contributions by NGOs, forcing them to generate legal precedents on the
participation of NGOs to such international processes. The constitutionality of amicus curiae
briefs filed by NGO's and several parties who are not in dispute has been upheld by a number
of rulings, although they have not yet been widely accepted or given serious attention in
specific instances.

This essay's goal is to lay out a structure for the involvement of non-governmental
organisations (NGOs) in international investment and financial conflicts through outlining the
1
Bob Reinalda, The Ashgate Research Companion to Non-State Actors (1st Edition edn, Routledge 2011) 16.
2
Philippe J sands and Ruth Mackenzie, 'International Courts and Tribunals, Amicus Curiae' [January 2008],
Max Planck Encyclopaedia of Public International Law,
<https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e8> accessed 14
November 2022.
fundamental principles for non-governmental organisations involvement in such dispute from
the angles of the legitimacy of third-party strategies & even the rationale, worth, and efficacy
of such preventative measures in the procedures for resolving disputes. One common thread
connecting these factors is the “public interest” or “public nature” of the conflict at hand.
Therefore, the goal is not to provide an all-encompassing account of the circumstances within
which NGOs may take part in international procedures. Evidently, the issues at the core of
this transition are similar, if not same, “in international economic law and international
investment law”, two separates but connected fields of the law. This Essay takes a transversal
approach to examine these similarities and differences.

Despite its centrality in international law, the term "non-state actor" is a negative descriptor
that does not do a good job of explaining the nature of non-state actors. It is for this reason
that there is no universally recognised definition, and the integration of “international
organisations and sub-state entities.” Despite just implying its absence, the concept of non-
state actors suggests where these groups should be placed within the conventional
international legal system. It makes sense to characterise secondary participants in a judicial
process founded on and focused on states in terms of those main participants. Since they "are
not states, and can never aspire to be such" is undoubtedly defining of them.3

NGO engagement in the WTO system has influenced their growth in international investment
arbitration. There was originally no clear reference to the production of amicus curiae briefs
in “investment arbitration under the Convention on the Settlement of Investment Disputes”
between States & Nationals of other States, which founded the ICSID. The acceptance of an
amicus curiae brief by an arbitral tribunal is neither authorised nor forbidden under the
UNCITRAL Arbitration Rules. In the same breath, tribunal is given wide latitude to decide
on its own in terms of technical norms and principles under the UNCITRAL Rules, subject
only to the principles of equality and agreement between the parties.4

In landmark Methanex judgement, “Case law from the Iran-US Claims Tribunal and the
WTO rulings cited above were relied upon by a NAFTA Chapter 11 Arbitral Tribunal in
reaching its conclusion that it had the authority to accept amicus curiae submissions. The
Tribunal found that amicus curiae submissions were not addressed directly in either the
UNCITRAL Arbitration Rules or Chapter 11 of the NAFTA Agreement”.
3
Philip ALSTON (ed), Non-State Actors and Human Rights, Oxford, Oxford University Press, 2005, Collected
Courses of the Academy of European Law, XIII, 3-36.
4
UN General Assembly, UNCITRAL Arbitration Rules, GA Res 31/98 (Dec 15, 1976) (adopted by
UNCITRAL on Apr 28, 1976).
After the Methanex case, "the NAFTA Free Trade Commission", released a statement
reiterating that arbitral courts have the power to hear arguments from parties not involved in
the dispute. As we'll see below, the Statement also suggested that Chapter 11 Tribunals
follow the established approach, which includes the establishment of specific conditions.5

In Glamis case, without evaluating the submission's conformity with the UNCITRAL
Arbitration rules, explicitly based its authority to receive and consider this and other briefs on
the previously stated “Statement of the Free Trade Commission on non- disputing party
participation.”6

The first time an ICSID Tribunal had the ability to consider amicus curiae papers was in the
Suez/Vivendi case. Article 44 of the ICSID Convention, “which gives the arbitral tribunal
the power to decide procedural questions not regulated by the rules of the ICSID convention,
was relied upon by the panel in establishing its authority to receive and consider amicus
curiae briefs, and the panel specifically cited the Methanex Tribunal's viewpoint of Article 15
of the UNCITRAL Rules.” This judgement reaffirmed the principle that an amicus curiae's
appearance before an arbitral tribunal is distinct from that of a party to the proceedings and
that the duty of an amicus curiae is to provide the tribunal with evidence and arguments that
the parties themselves cannot present.

Following the Tribunal's ruling in Suez/Vivendi, both the “ICSID rules and a number of
Bilateral Investment Treaties”, formally acknowledged the power for investment tribunals to
hear amicus curiae papers. Since this issue came up in 2006, the ICSID Rule of Arbitral
proceedings have been changed to make it possible for a tribunal to enable a non-disputing
party with a strong stake was asked in the matter to submit a written draft. The expanded
engagement of non-governmental organisations in investment arbitration has been an
immediate result of the new regulations.7

As an example, in Biwater Gauff, the parties agreed to apply the new ICSID rule to their
dispute even though it had arisen before the new rule went into effect. When applied similarly
to international investment arbitration, suggestions to change the UNCITRAL arbitration

5
In the Matter of an International Arbitration under Chapter 11 of the North American Free Trade Agreement
and the UNCITRAL Arbitration Rules, Between Methanex Corporation and the United States of America,
Decision of the Tribunal on Petitions form Third Persons to Intervene as 'Amici Curiae' $ 32 (Jan 15 2001), <
http://naftaclaims.com/Disputes/USA/Methanex/MethanexDecisionReAuthorityAmicus.pdf >accessed
14/11/2022.
6
Glamis Gold, Ltd v The United States of America.
7
Suez Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v Argentine Republic, ICSID
Case No ARB/03/19.
rules have not yet been approved. As a result of these changes, “some nations have included
the ability for NGCs to file amicus curiae briefs, and the restrictions thereto,” in their
bilateral investment agreements. The parties to the ‘United States-Uruguay Bilateral
Investment Agreement’, for instance, acknowledged that arbitral tribunal may accept &
evaluate amicus curiae comments from "a person or institution that is not a contesting
party."8

Cases affecting the environment & water in relation to commerce and foreign investment
have stood out as ones in which NGOs have been particularly active in international dispute
resolution. “Participation by non-governmental organisations (NGOs) enhances the
legitimacy, transparency, & openness of international investment arbitration & international
economic dispute resolution, so it benefits the "public interest" more than the tribunal or
court”. International investment arbitration, by its very nature, is of great public interest, and
the recent revisions to the ICSID Rules on Arbitration may be considered as proof of the need
to increase openness in this area.

Human rights and environmental concerns are two examples of broad "broader" interests that
NGOs can advocate for, but they can also represent the rights of a specific social group that
will be negatively impacted by a tribunal's or judge's decision but will not have any other
voice in the proceedings. To some extent ironically, the very justification that encourages
NGOs to engage as amici curiae also constrains their ability to do so. The "public interest"
role of NGOs is further diminished when governments have allowed amicus curiae briefs to
be filed in court processes, since the interest advocated by the state might then be seen as
converging with those of the NGO.

The Appellate Body in US-Lead and Bismuth II, just said that it would consider unsolicited
comments if they were "pertinent and beneficial to do so."9

In the EC Biotech case, a WTO panel upheld its wide discretion to include amicus curiae
papers in general and admitted the evidence provided through amici curiae into records of the
issue, which had a strong "public interest" character due to the importance of the concerns it
posed for the environment and public health. The Panel said that it “did not think it essential
to take the amicus curiae briefs into consideration” when it came time to make a judgement

8
Biwater Gauff (TanZania) Limited v United Republic of Tanzania, ICSID Case No ARB/05/22, Procedural
Order No 5.
9
US-Lead and Bismuth II, WTO Doc No WT/DS138/AB/R.
in the matter, despite having previously stated that it would evaluate the evidence given by
NGOs."10

Amicus statements are often considered to be beneficial to the judicial body since they supply
the court with essential data and arguments that have not been presented by the parties
themselves. The purpose of amicus submission is to aid the tribunals in its decision-making;
as such, the updated ICSID Rules require that the briefs be relevant to the issues at hand in
the dispute. Submissions that aid a tribunal or court by providing knowledge and arguments
that vary from that of the conflicting parties are more likely to be accepted in the long run.
For this reason, NGO contributions are generally rejected in WTO procedures, whereas
investment tribunals are more receptive to the possibility that information provided by third
parties may really be helpful.11

At its core, the argument over whether or not NGOs should be allowed to participate and
whether or not they should be allowed to represent the "public interest" in international
investment arbitration & economic dispute resolution goes to the entire basis and reasoning
of the current system. Because of this, there is tension between the commercial and closed
character of the process and the public & transnational nature of such disputes. This is
because the tribunal and courts are routinely examining the exercise of sovereignty
constitutional powers by states. Not many countries are happy with this latest change,
especially in light of the WTO. Initially, concerns were raised about how this new
development would conflict with the terms of the WTO's Doha Development Framework. 12

The primary question regarding the legality of the participation of non-governmental

organisations (NGOs) as amici curiae is whether or not a process which has explicitly
indicated regulatory requirements trying to regulate the involvement of third states in a
conflict does not, by definition, explicitly forbid any other kind of action from taking place.
Due to the unambiguous inclusion of a clause in the DSU indicating that 3rd states only may
join in the dispute when they have a major interest in the issue, third-party engagement in the
WTO Dispute Settlement is perceived as being quite restricted. This is because of the
provision.

10
EC-Biotech, WTO Doc No WT/DS291/R.
11
Suez/ Vivendi, ICSID Case No ARB/03/19.
12
A Qureshi, Extraterritorial Shrimps, NGOs and the WTO Appellate Body (International and Comparative
Law Quarterly 1 January 1999) 199-206.
The increasing involvement of non-state stakeholders in the process of resolving international
disputes has become one of the foremost serious challenges confronted by laws of nations in
the most recent years. As a result of their growing involvement, non-state entities are posing
a serious threat to the state's longstanding monopoly on international dispute resolution
processes. Inter-state economic disputes and "mixed" investment conflicts involving states &
non-state actors account for the vast bulk of today's judicially decided disputes, despite the
fact that both of these institutions have historically been highly restricted to non-state & non-
corporate involvement. With the ground breaking acknowledgment of tribunal’s & panel’s
ability to consider amicus curiae submissions in “international economic & investment law”,
the path has been paved for more openness in these procedures.

The experience of WTO & the Appellate Body demonstrates an expanding acknowledgment
of NGO involvement via amicus curiae briefs, despite strong opposition from certain
governments, including WTO nations, on the grounds that such action would need the
approval of the states. Legal technical considerations in favour of wide NGO engagement as
amici curia have often been used by tribunals & courts to interpret the organization's core
treaties, & such proposals have sometimes been dismissed on grounds essential to the concept
of amicus curiae. However, they have seldom elaborated on the policy considerations that
informed the interpretation of their legislation or the arbitral rules that applied to the
proceedings.

These questions pertaining to policy are very important because they serve as the foundation
for deciding whether or not it is appropriate or useful to enable NGO participation in a
specific case. The engagement of NGOs ought to be able to legitimately represent the
“interests of the public” or an interest that is distinct from corporate or state interests. The
objective of an amicus curiae brief is to give the tribunal or court with relevant information or
arguments. The effectiveness of amicus curiae papers has been and will remain to be highly
impacted by these factors, which are at the core of the reasoning for the admittance of amicus
curiae briefs. As a consequence of this, it is a foregone conclusion that the participation of
NGO in the formation of international investment and economic laws will grow over time.